Collier v. United States of America et al
ORDER signed by Judge Lynn Adelman on 3/25/13 denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Further ordering dismissal of case. The Clerk is directed to enter judgment. (cc: all counsel, via USPS to petitioner) (dm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
Case No. 13-C-329
(Criminal Case No. 11-CR-147)
UNITED STATES OF AMERICA
RULE 4 ORDER
Petitioner Edward Collier moves pursuant to 28 U.S.C. § 2255 to vacate his 120 month
sentence for possession of a short-barreled shotgun. Pursuant to Rule 4(b) of the Rules
Governing § 2255 Proceedings, I must conduct a preliminary review of the motion:
If it plainly appears from the motion, any attached exhibits, and the record of the
prior proceedings that the moving party is not entitled to relief, the judge must
dismiss the motion and direct the clerk to notify the moving party. If the motion
is not dismissed, the judge must order the United States Attorney to file an
answer, motion, or other response . . . .
On July 12, 2011, the government obtained an indictment charging petitioner with
possession of a firearm as a felon, contrary to 18 U.S.C. § 922(g)(1). The indictment identified
the firearm as a 20 gauge pump shotgun with a barrel 12 ½ inches in length. The indictment
further alleged that petitioner qualified as an armed career criminal under 18 U.S.C. § 924(e),
triggering a 15 year mandatory minimum sentence. On January 6, 2012, pursuant to an
agreement with the government, petitioner pleaded guilty to an information charging him with
possession of a short-barreled shotgun, contrary to 26 U.S.C. § 5861(d). The agreement
called for the parties to jointly recommend a 10 year sentence, the maximum under § 5861(d),
but 5 years less than the minimum term required by the original charge. I accepted the plea,
and on April 12, 2012, sentenced petitioner to 120 months. He took no appeal but now seeks
to vacate his sentence under § 2255.
Applicable Legal Standards
Section 2255 permits a federal prisoner to attack his sentence on the grounds that “the
sentence was imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. §
2255(a). “[R]elief under § 2255 is an extraordinary remedy because it asks the district court
essentially to reopen the criminal process to a person who already has had an opportunity for
full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Prisoners may
not use § 2255 as a substitute for direct appeal. Varela v. United States, 481 F.3d 932, 935
(7th Cir. 2007). Claims not raised on direct appeal are barred from collateral review unless the
prisoner can show good cause for failing to raise the issue earlier and actual prejudice based
on the error alleged. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). Further,
a prisoner who pleads guilty on the advice of counsel cannot in a collateral proceeding raise
independent claims relating to the deprivation of constitutional rights that occurred prior to the
entry of the guilty plea. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Rather, he may only
attack the voluntary and intelligent character of the guilty plea by showing that the advice he
received from counsel fell below Sixth Amendment standards. Id.; see also Massaro v. United
States, 538 U.S. 500, 504 (2003) (holding that a claim of ineffective assistance of counsel may
be raised for the first time under § 2255). In order to establish an ineffective assistance claim,
a prisoner bears the heavy burden of showing that his counsel’s performance fell below an
objective standard of reasonableness, and that the deficient performance prejudiced his
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Where the prisoner enters a
guilty plea upon the advice of counsel, the voluntariness of the plea depends on whether
counsel’s advice fell within the range of competence demanded of attorneys in criminal cases.
Hill v. Lockhart, 474 U.S. 52, 56 (1985). In order to show prejudice, the prisoner must show
that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial. Id. at 59.
Because petitioner failed to raise any of the claims presented in his § 2255 motion
directly, they are procedurally defaulted. To the extent that petitioner blames his lawyer for
failing to raise these claims and instead advising him to plead guilty, he cannot show prejudice,
as the claims lack any merit and the record shows that counsel obtained a favorable resolution
through the plea agreement.
Petitioner primarily attacks the jurisdictional basis for his custody. The district court has
subject matter jurisdiction over all offenses against the laws of the United States, 18 U.S.C. §
3231; Hugi v. United States, 164 F.3d 378, 380 (7th Cir. 1999), and personal jurisdiction over
any defendant brought before it on an indictment charging a violation of federal law, United
States v. Benabe, 654 F.3d 753, 767 (7th Cir. 2011), cert. denied, 132 S. Ct. 1612 (2012).
Petitioner’s contention that § 3231 is invalid because it was never enacted into “positive law”
is frivolous. See, e.g., Pegues v. United States, No. 2:10cv212, 2011 WL 5037509, at *2-3
(M.D. Ala. Sept. 26, 2011) (collecting cases), adopted 2011 WL 5037409 (M.D. Ala. Oct. 24,
2011); Villanueva v. United States, No. 09-C-0479, 2009 WL 1867742, at *2 (E.D. Wis. June
26, 2009) (collecting cases). Similarly frivolous are petitioner’s claims that under 27 C.F.R. §
72.11 he was prosecuted for a “commercial crime” without a contract, see, e.g., United States
v. Davis, No. 2:09-CR-78, 2012 WL 2995684, at *3 (D. Nev. July 23, 2012) (collecting cases);
Jones v. United States, No. 2:07-cv-448, 2008 WL 2901050, at *2 (M.D. Fla. July 23, 2008)
(“Section 72.11 does not state that all crimes are commercial in nature, and in any event this
section has no relevance to the criminal prosecution of petitioner.”), that the government lacked
“standing” to prosecute him, see, e.g., United States v. Daniels, 48 Fed. Appx. 409, 417-18 (3d
Cir. 2002) (“This contention is frivolous. As sovereign, the United States has standing to
prosecute violations of valid criminal statutes.”); United States v. Wright, No. 1:09 CR 219,
2010 WL 4628529, at *5 (N.D. Ohio Nov. 5, 2010) (same), and that the government failed to
satisfy the “corpus delicti rule,” see United States. v. Kerley, 838 F.2d 932, 940 (7th Cir. 1988)
(noting that the “the corpus delicti rule no longer exists in the federal system”).1
Petitioner also alleges prosecutorial vindictiveness, but he presents no facts supporting
such a claim. In order to make out a claim of vindictive prosecution, a defendant must show
that the prosecutor harbored genuine animus, and that absent this motive he would not have
been prosecuted. United States v. Monsoor, 77 F.3d 1031, 1034 (7th Cir. 1996). In certain
limited situations, such as where a defendant succeeds in obtaining a reversal on appeal and
the government then brings more serious charges, the court may presume vindictiveness.
United States v. Cooper, 461 F.3d 850, 856 (7th Cir. 2006). However, this presumption does
At all events, in the present case the government had the shotgun (the corpus delicti
in a prosecution of this type). See n.2, infra.
not apply to pre-trial charging decisions, id., and absent circumstances giving rise to a
presumption of vindictiveness the defendant must affirmatively show through objective
evidence that the prosecutorial conduct at issue was motivated by some form of prosecutorial
animus. United States v. Jarrett, 447 F.3d 520, 525 (7th Cir. 2006). Only if the defendant
comes forward with objective evidence of actual vindictiveness does the burden shift to the
government to show that the motivation behind the charges was proper. Id. Petitioner
presents no evidence of vindictiveness in his case, and the record actually suggests the
contrary: the prosecutor offered petitioner a plea agreement that saved him 5 years in prison.
Petitioner alleges that his lawyer provided ineffective assistance by allowing him to plead
to the wrong statute, but aside from his misguided argument about § 3231 he fails to explain
how this is so. His bare contention that counsel conspired with the prosecutor adds nothing.
See Oliver v. United States, 961 F.2d 1339, 1342 (7th Cir. 1992) (stating that conclusory
allegations of attorney error will not suffice). Finally, as indicated, the agreement negotiated
by counsel and the government saved petitioner 5 years in prison; petitioner cannot
demonstrate that counsel provided ineffective assistance in advising him to accept this
agreement and plead guilty.2
Given the evidence the government possessed, petitioner stood little chance at a trial.
The police received a complaint from “D.J.” that petitioner had stolen D.J.’s shotgun. The
police contacted petitioner and asked him about the shotgun; in response, petitioner retrieved
a gun case from his residence and gave it to the police. The case contained a shotgun, which
had a sawed off barrel. The police showed D.J. the shotgun, and he identified the gun but
claimed someone had sawed off the barrel since he had last seen it. The police then recontacted petitioner, who admitted sawing off the barrel. Following his arrest, petitioner made
further admissions, stating that he took the shotgun because D.J.’s dog had damaged his
furniture. He also admitted to sawing off the barrel because it was too long to carry around,
and he needed it for protection. It was also undisputed that petitioner had four previous
burglary convictions, making him an armed career criminal. Under these circumstances, there
was little counsel could do other than attempt to negotiate the best disposition possible.
THEREFORE, IT IS ORDERED that petitioner’s motion is DENIED, and this case is
DISMISSED. The Clerk is directed to enter judgment accordingly.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, the district
court must issue or deny a certificate of appealability (“COA”) when it enters a final order
adverse to a § 2255 petitioner. In order to obtain a COA, the petitioner must make a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The
standard for making a “substantial showing” is whether reasonable jurists could debate whether
the motion should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 484
(2000). Because petitioner’s claims lack any arguable merit, I decline to issue a COA in this
Dated at Milwaukee, Wisconsin, this 25th day of March, 2013.
/s Lynn Adelman
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?